‘Homosexuality Okay if Practised in Private’

New Delhi—The State will turn a blind eye if
homosexuality is practised between two consenting adults in private, a Central
Government affidavit suggests.

A Home Ministry affidavit, submitted in Delhi High Court,
said the basic thrust of the argument of pro-gay activists was the perceived
violation of the fundamental liberties guaranteed in the Constitution.

However, there was no violation of fundamental liberty as
long as any homosexual/lesbian act was practised between two consenting adults
in privacy as in the case of heterosexuality.

This was contrary to the estabilished law that if an act
amounted to criminal offence, it would be so even if it was done privately.

“In India, Section 377 of the Indian Penal Code has
been basically used to punish sexual abuse to children and to compliment
lacunae in the rape laws. It has rarely been used to punish homosexual
behaviour,” the affidavit said.

The provision became operable only when there was a
report to the police for either sodomising or buggering, it added.

The purpose of the Section 377 IPC was to provide a
healthy environment in the society by criminalising unnatural sexual
activities against the order of nature, it said.

If this section was taken out of the statue book, a
public display of such affection would, at the most, attract charges of
indecent exposure which carry a lesser jail term that the existing
imprisonment for life or ten years and fine.

While the Government could not police morality, in a
civil society criminal law had to express and reflect public morality and
concerns about harm to the society at large.

The Government’s reply came in response to a plea
challenging the vires of Section 377 IPC and seeking to legalise
homosexuality.

‘Naz Foundation’, a voluntary organisation working to
prevent the spread of AIDS, had filed the PIL seeking amendment to the Section
which made sexual relations between two consenting adults of same sex a
criminal offence, saying it was a hurdle in the AIDS awareness campaign run by
the NGO.

It claimed that Men who have Sex with Men (MSM), who were
very vulnerable to the disease, were harassed by the authorities and the law
enforcing agencies, which forced them to go underground and came in way of
HIV/AIDS prevention efforts.

Though acknowledging that a number of countries had done
away with the criminal content of homosexuality/lesbianism, the Home Ministry
affidavit said that there was no tolerance to such a practice in the Indian
society.

“In any Parliamentary secular democracy, the legal
conception of crime depends on political as well as moral considerations...
Public tolerance of different activities changes and legal categories get
influenced by those changes. The social dynamics take into account the moral
aspect also,” it however said.

“In our country criminal law, unfortunately, is not
based on a fundamentalist or absolutist conceptiion of morality and it
reflects shift according to changes in public attitudes.”

Acts which had been glorified in the past, like dowry,
child marriage, domestic violence, widow re-marriage, had now been brought
under the purview of criminal justice. Therefore, changes in public tolerance
of activities lead to campaigns to either criminalise some behaviour or
decriminalise others, it added.